Director of Public Prosecutions v Lau
[2021] VCC 1739
•18 November 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00941
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID LAU |
---
JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 November 2021 | |
DATE OF SENTENCE: | 18 November 2021 | |
CASE MAY BE CITED AS: | DPP v Lau | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1739 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Plea of guilty – one charge recklessly cause serious injury – one charge intentionally damage property – five charges obtaining a financial advantage by deception- related summary offences of driving whilst suspended and driving whilst disqualified- circumstances of COVID-19 pandemic
Legislation Cited: Crimes Act 1958 (Vic); Road Safety Act 1986; Sentencing Act 1991 (Vic)
Cases Cited:R v Verdins & Ors [2007] VSCA 102; Worboyes v The Queen [2021] VSCA 169
Sentence: Total effective sentence of 3 years and 4 months imprisonment with a non-parole period of 2 years and 1 month
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Johnston | Office of Public Prosecutions |
| For the Accused | Mr G. Thomas | Greg Thomas Barrister & Solicitor |
HER HONOUR:
Introduction
Plea of guilty and maximum penalties
1David Lau, you have pleaded guilty to one charge of recklessly causing serious injury, the maximum penalty for which is 15 years' imprisonment, one charge of intentionally damaging property, which has a maximum penalty of 10 years' imprisonment, and to five charges of obtaining a financial advantage by deception, which each carry a maximum charge of 10 years' imprisonment.
2You have also pleaded guilty to two related summary offences; driving while suspended and driving while disqualified, which both carry a maximum penalty of two years' imprisonment or 240 penalty units.
Circumstances of the offending
3The Agreed Summary of Prosecution Opening for Plea, dated 18 October 2021, sets out the circumstances of your offending. It was tendered on the plea and became Exhibit A. It is attached to and forms part of these reasons. I will summarise some, but not all of the facts giving rise to your offending here.
Indictable charges
Charge 1: Causing serious injury recklessly
4On 4 November 2019 at about 10 pm the victim, Peter Whittall, walked past a house in Baldwin Street in Werribee, where you were standing with two other men. After speaking briefly about a cigarette Mr Whittall asked you where his gold ring is. For whatever reason you were offended by the suggestion that you had this ring and became angry. You and the two other men went into the house and came back with a crossbow, chain and tomahawk. Mr Whittall said something like 'take me on if you want to', but he then decided to walk away.
5Mr Whittall walked to the 7-Eleven on Synnot Street, Werribee, and bought something to eat. While standing outside the 7-Eleven he had a conversation with Matthew Joseph, a limousine driver, who was there with his parked car at the front of the store.
6At about 11.15 pm you drove a white Toyota RAV4 into the rear carpark of the Coles on Synnott Street and parked. You walked to the entrance of Coles before going back to the car and collecting a blue and fluorescent orange jacket. You walked along a driveway and across to the 7-Eleven.
7You approached Mr Whittall from behind while he was eating a snack and talking to Mr Joseph. Mr Whittall turned and saw you shouting and holding a machete. You chased him through the 7-Eleven carpark and onto Synnott Street. You lunged at him, swinging the machete around 2-5 times. The machete cut into his hand and his left rear upper thigh. You knew that your actions in swinging the machete at the victim would probably cause him serious injury.
8Mr Joseph drove his limousine towards you and Mr Whittall, sounding a horn with a siren-like alarm. You ran back to the Coles carpark, discarding your jacket in the loading dock, before leaving in the RAV4, which was driven by an unknown person.
9Mr Whittall was taken to hospital by ambulance and treated for 'acute sharp trauma' to his right-hand including artery damage, injury to the median and ulnar nerves, injury to all tendons bending the hand and injury to the hand muscles in the palm, all of which needed surgical repair. Mr Whittall also suffered open wrist bone fractures which needed surgical repair with an operation containing metal rods screwed into the bones and stabilised with an external structure. Without surgical treatment the function of Mr Whittall’s hand would have been impaired for the rest of his life. Some degree of reduced function and sensation in the future is expected.
Charge 2: Intentionally damaging property
10On 8 August 2019, just before 11.45 am, you were driving a Mitsubishi sedan in the pay-per-use carpark of Wyndham Private Medical Centre. You drove up to the exit boom gate, which was down, stopped the car, got out and forcibly pushed it up with both hands. The boom gate was damaged as a result and left up for about 2 hours before it could be repaired. The damage resulted in a loss of about $1,470 to the owner of the carpark.
Charges 3-7: Obtaining financial advantage by deception
11Police later identified the RAV4 that you had earlier been driving to be a hire car in the name of your partner, Samantha.
12On 12 October 2019 you drove this car to the Coles Express service station on The Avenue in Ardeer. You put $30 worth of unleaded petrol into the car and then went into the store attempting to pay, but your card was declined. The payment did not process and you left without paying for the petrol.
13You repeated a similar process on 14, 26 and 29 October 2019 and again on
4 November 2019. Each time you put petrol in the car, attempted to use a card that was declined and then did not return to pay.
Summary offences
Summary Charge 10: Drive whilst suspended
14In terms of the summary offences, on 11 July 2019 you received an infringement for exceeding the speed limit. Your licence was suspended for three months from that date and between 2 September 2019 and 10 October 2019 you drove a car three times during that period of suspension.
Summary Charge 11: Drive whilst disqualified
15On 23 October 2019 you were convicted of traffic offences in the Shepparton Magistrates’ Court. You were disqualified from holding a licence for six months from 24 October 2019. You subsequently drove a car three times while you were disqualified.
Arrest and interview
16
On 12 November 2019 you were arrested and taken to the Gunbower police station, where you participated in a record of interview with police. You told police that you did not know anything about the confrontation that occurred on
4 November 2019. You said images on the CCTV footage were not you and that you absolutely did not remember hitting anyone with a machete. You made some admissions, such as that it was you who had participated in obtaining petrol from the petrol stations and you did not, it would seem, dispute those events.
Nature and gravity of the offending
17
I am obliged to articulate where your offending fits into a range of similar offending. First, I note that the background to the altercation in the prosecution summary of facts lacks any real meaningful or logical explanation for why you attacked
Mr Whittall in the way you did. With the information that I have it seems that this event came out of an exchange between people who otherwise did not have a history of antipathy.
18The original exchange happens around 10 pm and Mr Whittall leaves. About an hour and a quarter later you have driven a car and found Mr Whittall in a shopping area. You brought with you a bladed weapon. I do not find that you were necessarily contemplating the attack for the whole hour and a quarter, but your barrister sensibly conceded that really the only available inference is that you went in the car in search of your victim, and this suggests a degree of contemplation of what you did next. And what you did next was, while armed with a sharp weapon, approached your unarmed victim and, with a degree of persistence (2-5 blows), struck at him with the machete.
19The injury that one of your blows caused, and I have already outlined aspects of this, was severe enough to suggest some real force was used. The degree of probability that serious injury would result from this act was high. Throughout this your victim did not fight back. Your blow struck him to the hand while he raised it to protect himself.
20You have maintained the position where you say that you have no memory of these events, but, objectively, this is a serious form of the offending. You sought out your victim and subjected him to a particularly violent attack.
21Because of your inability to recall this event I am left with only those objective markers of the seriousness of what you did. If there was some logic or purpose to your actions, and it is quite possible that there was not, they are not discoverable now. This was very serious offending, somewhat contemplated, and rather persistent.
Criminal Record
22Having regard to your prior criminal history you have some relevant prior criminal history, though nothing that is as serious as this. There are very few priors for violence and nothing at all even close to this offending in seriousness. There have been lengthy periods where you have been in the community and offence free.
23Your first appearance in court was in 1997 and your barrister linked your unfolding criminal history to difficulties with your family; in particular what appeared to be a very significant betrayal by your father.
24Much of your offence history appears to be driving or related to minor drugs charges with the exception of what appears to be family violence in 2017. Before this case, you have been dealt with in the Magistrates’ Court. You had received community-based dispositions and some limited terms of imprisonment. This is by far your longest time in custody. It is by far your most serious offending.
Personal circumstances
25I will now turn to your personal circumstances.
26You are now 44 years old; you were 42 at the time of your offending.
27You were adopted by your parents at the age of three months and raised as the eldest of four children. You found out you were adopted when you were seven. You do not know anything about your birth or about your biological parents.
28You have two sisters and one brother, who were also adopted. Your eldest sister, Yasmin, is a dentist. Your brother, Kym, works for ASIC. Your youngest sister, Bethany, who has an intellectual impairment and bipolar disorder, works as a kitchenhand, but she lives independently with the support of your mother.
29You feel that you were rejected by your birth family. You feel you were betrayed by your adopted family when your father, it emerged, had been maintaining a relationship with another woman and her children in parallel with your own family’s life. This occurred in your mid-20s and caused the separation of your mother and father.
30You recall that your adoptive father was physically and emotionally abusive towards you. You have not spoken to him in a number of years.
31Your relationship with your father has now been permanently ruptured, although he maintains relationships with two of your siblings.
32Your adoptive mother remarried your stepfather, Peter, who you think highly of and consider to be your Dad.
33You had behavioural difficulties from a very early age. Although you were given the opportunity to study at the best schools in your area you bounced between multiple schools (nine in all) being serially expelled because of your behavioural issues. You did complete Year 11 but left half way through Year 12.
34You started using cannabis at the age of 13 or 14 and drinking alcohol regularly at 16. You have a history of taking large quantities of hallucinogenic drugs.
35When you were 19 you moved to Melbourne to start a baker’s apprenticeship. Around this time your recreational drug use began to escalate. You did not complete the apprenticeship. You then did most of a chef’s apprenticeship but did not complete that.
36You worked in a variety of different jobs including as a kitchen-hand, plumber’s assistant, electrician’s assistant and as a builder’s labourer.
37In 2004 - 2005 you moved interstate to Western Australia. You worked at a winery there for about 7 years.
38When you were 26 you started a relationship with Catherine, with whom you share a daughter, Amy. She is now 19 years old. You have not spoken with her in almost three years, but your mother is in regular contact with her.
39You later formed a relationship with Jessica, with whom you share a daughter who is now 17 years old. You have not had contact with her for a year.
40In 2011 you moved back to Melbourne. You worked for two years with your stepfather as a builder and labourer.
41Between 2004 -2014 you remained offence free, even though you were still using drugs recreationally.
42In 2014 you had a falling out with your parents and effectively became homeless; couch surfing or sleeping in your car. Your parents were unaware of your homeless status.
43At one stage you moved to Mildura to try winery work again, but lost the job because of your escalating drug use. You returned to Melbourne and worked in telemarketing for a time.
44In 2017 you met and started a relationship with your now ex-partner, Samantha, with whom you share an 18-month-old daughter, Kaitlyn. Your drug use escalated around this time.
45Kaitlyn was born while you have been in custody. She was removed from Samantha’s custody at birth and placed into the care of your mother and stepfather by the Department of Health and Human Services. Your parents intend to apply for permanent custody of her.
46It is your intention upon your release to live with your younger sister Bethany, who lives close by to your parents and Kaitlyn.
47You have suffered problems with your mental health from an early age and have been prescribed antidepressant medication.
48While in custody you have self-harmed a number of times. I will return later in these reasons to your mental health problems.
Victim impact
49
I am obliged to have regard to the impact of your offending on your victims.
Mr Whittall chose not to file a victim impact statement; however I am confident that the attack he was subject to and the injury he sustained were both shocking and painful. There was a degree of impairment to his hand that may be permanent, although it is difficult to say precisely at this point. I take the impact of your offending on Mr Whittall into account in arriving at your sentence.
Matters in mitigation
Plea of guilty
50Turning now to matters in mitigation.
51You entered a plea of guilty to these charges and by doing so you saved the community, but most particularly, the witnesses, from the costs, both human and financial, of conducting a trial.
52Early on, there was some confined cross-examination of both Mr Whittall and an expert on the subject of serious injury. A plea offer was made on 22 April 2021 and acceptance was indicated on 6 May 2021. Both counsel submitted, and I accept, that this is properly considered to be an early plea, notwithstanding that it has been entered at this stage. This is important and will be taken into account.
53Although you have little memory for the offending through your counsel you accepted the facts set out in the prosecution opening. This amounts to your acceptance of responsibility and contains within it an aspect of remorse, and I take that into account.
54Moreover, I must impose a sentence in the context of the pandemic where the benefit to you for pleading guilty must be palpable. By entering these pleas you have taken one more trial out of a very long trial list. The benefit to the administration of justice that this bestows will be recognised in a substantial way[1]. I make it clear that were it not for these circumstances, which have severely affected the administration of justice in Victoria, your sentence would have been significantly higher.
[1]Worboyes v The Queen [2021] VSCA 169.
Psychological material
55Turning now to the psychological material tendered on your plea.
56
On your plea three reports were tendered. In chronological order they were the report of Dr Nitra Shukla, psychiatrist, dated 20 August 2019, the report of
Dr Nicholas Owens, psychiatrist, dated 10 June 2020 and prepared prior to the resolution of the case on the question of mental impairment, and the report of
Ms Gina Cidoni, psychologist, dated 11 November 2021.
57I have read and considered all three reports. Initially your barrister advanced a submission that your moral culpability should be reduced on account of the material in paragraph [91] of Ms Cidoni’s report. I raised a range of concerns with that submission, and it was ultimately not pressed. It was acknowledged at the hearing that the reports diverged in some respects but this divergence, the ‘Verdins limb 1’ submission being abandoned, did not need to be resolved. In essence, Ms Cidoni and Dr Shukla both endorsed a diagnosis of ‘Dissociative Identity Disorder’ on the basis of what appeared to be self-reporting by you that you experienced different personalities emerging in different circumstances. Dr Owens did not adopt that diagnosis. As the Court of Appeal said in the case of Brown v R,[2] what is important is not the diagnostic label but how the particular manifestations of a mental disorder operate on the accused and, in particular, operate on the accused relative to the offence committed.
[2][2020] VSCA 212 at [21] and [61].
58It is clear on the material that at the time of the offending you had a very significant methylamphetamine habit and were using something between 0.5 and 1.7 grams of methylamphetamine daily. This use was overlaid on a number of pre-existing mental health difficulties. Given the lack of information about, and the lack of memory that you have for the offending, it is simply not possible for any diagnosis to be properly attached to and meaningfully reduce the moral culpability of the offending.
59In the end, I was more attracted to the cautious and reasoned opinion of Dr Owens. A summary of his conclusions are:
· You encountered difficulties with your mental health from an early age, having been exposed to physical and emotional abuse in childhood;
· You also suffered from difficulties with social and educational functioning at school;
· Despite these early difficulties you established some occupational progress in your 20s and 30s, but you have had chronic and enduring difficulties with substance abuse;
· This substance abuse, in combination with the relationship problems you encountered as a result, have probably prevented you from developing more mature coping skills and capacities to deal with adversity;
· You have a complex mental health presentation that presents difficulties in arriving at a clear diagnosis.
In Dr Owens' opinion is that most likely the major mental health diagnoses are:
§A current adjustment disorder;
§Longer term alcohol and methamphetamine use disorder;
§Traits of personality disorder, or features of borderline and antisocial personality disorder (and consequent difficulties with stress management, deliberate self-harm and problems with impulsivity and angry outbursts);
§It is possible that in the past you may have experienced brief periods of methamphetamine induced psychosis.
§The use of stimulants and alcohol, however, makes the evaluation of the diagnosis more difficult; and
§There may be a presence of an independent anxiety disorder.
60It is also clear that at the time of your offending you were either using or withdrawing from methamphetamine, which can cause 'disinhibition of behaviour, elevated arousal and aggression swings from elation or euphoria to depression and despair’.[3]
[3]Report of Dr Owens at [79].
61Further, I note that the matters summarised at paragraphs [67] to [71] of Dr Owens’ report show that you went to the Werribee Mercy emergency department on multiple occasions between October - November 2019. That is, in the weeks just before your offending. You presented variously with episodes of self-harm, overdose, ‘stress reaction’ on one occasion and once under section 351 of the Mental Health Act 2014. Dr Owens notes that you were discharged on this last occasion with no readily identifiable follow-up plan and no diagnosis. It would not have been easy for the medical team to treat you in the emergency department, given your complex presentations and the demands of that environment, however it seems that at least in those weeks you were seeking institutional help for your mental health problems and that, for whatever reason, the help that you got was less than ideal.
62In Dr Owens' opinion the difficulties you experienced, summarised in his report at paragraph [81], mean that you would likely experience imprisonment as more burdensome than a man without the symptoms and personality traits you have. This engages limbs 4, and to some degree 5, of the case of Verdins, and I moderate your sentence accordingly.
Prospects of rehabilitation
63I am obliged to have regard to your prospects of rehabilitation. Your barrister frankly conceded that these might be considered as guarded. You have the twin difficulties of mental health problems and relatively enduring addictions to alcohol and drugs.
64However, I am not prepared to conclude that your future is hopeless. You have had lengthy times in your adult life when you have successfully worked and stayed out of trouble. Your prior history is, unlike some who come before the court, relatively modest in relation to violent offending. Your family, several of whom attended your plea hearing, remain supportive and loyal. Your mother is raising your baby daughter. Your sister says you can live with her when you are finally released. Some people in your circumstances have to attempt rehabilitation without a loving family around them. You have that very significant advantage. Much will depend on your capacity to stay away from illicit substance use so that your mental health conditions can be treated without the interference of drug addiction.
65I have considered your rehabilitation in the construction of a non-parole period that would allow you some significant period of supervision in the community.
Current sentencing practices
66I have had regard to current sentencing practices. There is a wide range of conduct that can constitute the charge of recklessly causing serious injury. No particular case is much like yours, but I have had regard to the sentencing landscape by reference to some similar cases.
Sentencing principles
67You must be punished for what you did. I must sentence you in a way that deters others from behaving in a similar way. There is an aspect of specific deterrence in this case; that is, to create an understanding in you that acting this way will result in very serious amounts of time spent away from the community and away from your family. I must also hold the goal of rehabilitation in mind and of the protection of the community. I regard the community’s protection to be best served by your rehabilitation.
COVID-19 Pandemic Circumstances
68As I deliver this sentence Victoria is emerging, somewhat tentatively, from many months of lockdown, but some of the anxieties and uncertainty of our time persist. Case numbers seem relatively high balanced only by the optimism of widespread vaccination. It is clear that for some time prisoners in Victoria, and you among them, have suffered the anxiety of not knowing if or when the virus will enter the prison system. Access to visits and programs has been significantly curtailed. For you this has meant in particular that you have not met your baby daughter in person, though you have seen her on screen. You lost the first 18 months of your daughter’s life partly because of what you did, but the fact you have not yet been able to hold her has been imposed on you by the restrictions to meet the pandemic circumstances. So far you have served your sentence in that more severe and uncertain climate and I take that into account.
Totality and concurrency
69I have had regard to the principles of totality and moderated your sentence, and more particularly, the orders for cumulation accordingly.
Disposition
70On Charge 1: recklessly causing serious injury, you are convicted and sentenced to three years’ and two months' imprisonment. This is the base sentence.
71On Charge 2: intentionally damaging property, you are convicted and sentenced to two months' imprisonment.
72On Charges 3 to 7: obtaining financial advantage by deception, you are convicted and sentenced to an aggregate term of three months' imprisonment.
73On the related Summary Charge 10: driving while suspended, you are convicted and sentenced to one month imprisonment.
74On the related Summary Charge 11: driving while disqualified, you are convicted and sentenced to one month imprisonment.
75I direct that one month of the sentence on Charge 2 and one month of the aggregate sentence on Charges 3 to 7 are to be served cumulatively upon each other and upon the sentence on Charge 1, making a total effective sentence of three years’ and four months' imprisonment, and I direct that you serve a minimum of two years’ and one month before becoming eligible for parole.
Pre-Sentence Detention
76I declare that pursuant to s18 of the Sentencing Act 1991, you have already served 737 days pre-sentence detention to be deducted from your sentence administratively.
S6AAA Reduction
77Pursuant to s6AAA of the Sentencing Act I declare that had you been found guilty after trial, and not pleaded guilty, I would have imposed a sentence of four years’ and six months’ with a minimum of three years’ before becoming eligible for parole.
---
0
3
0